2017 Suite: Commentary on Clause 13 – Variations and Adjustments

Clause 13 clarifies the Engineer’s power to vary, allowing contractors to object to unforeseeable variations. Significant limitations include objections for health, safety, and environmental impacts. Variations must align with Employer’s Requirements, and supplemental agreements may be needed for significant changes.

Author: Victoria Tyson

Tags: Adjustments, Delay, Time, variation, Variations

11/13/2024

2017 Suite: Commentary on Clause 12 – Tests after Completion

Clause 12 covers Tests after Completion, often required for process and power contracts. Tests are conducted by the Employer, with significant changes including competent staff requirement, testing per Employer’s Requirements and O&M Manuals, and new provisions for test timing and notice.

Tags: completion, contractor, Delay, Employer, Test after Completion, Test on Completion

2017 Suite: Commentary on Clause 11 – Defects After Taking Over

Clause 11 has been clarified, with detailed provisions for notices and periods, DNP for Parts, and clearer time limits. Changes include risk allocation, compensation for denied access, and limited liability for Plant damage. Some cross-references may cause confusion.

Author: Victoria Tyson

Tags: Cost, Damage, Defects, Defects after Taking Over, Delay, Taking Over

2017 Suite: Commentary on Clause 07 – Plant, Materials and Workmanship

Clause 7 of FIDIC 2017 mandates specified quality for plant, materials, and workmanship, requiring defect rectification. It covers testing, inspection, and rejection to ensure compliance. All sub-clauses have changed, with several significant modifications.

Author: Victoria Tyson

1999 Suite: Commentary on Clause 16 – Suspension and Termination by Contractor

Clause 16 addresses suspension and termination by the Contractor, including rights to suspend work, grounds for termination, cessation of work, and payment on termination. It specifies notice periods, conditions for immediate termination, and entitlements following termination.

Author: Victoria Tyson

Tags: Cessation of Work, contractor, Contractor Suspension, Contractor Termination, Payment on Termination, Suspension, termination

1999 Suite: Commentary on Clause 12 – Measurement and Evaluation

FIDIC 1999 is a re-measurement contract, with the Employer bearing the risk of quantity variations. Clause 12 covers measurement, evaluation of rates, and valuation of omissions. It lacks a standard measurement method, which has been criticized.

Author: Victoria Tyson

Tags: costs, Measurement, Measurement of Works, Price, Re-Measurement, Works, Works Pricing

1999 Suite: Commentary on Clause 09 – Tests on Completion

Clause 9 covers Tests on Completion, requiring the Contractor to give notice when ready to carry out Tests on Completion, addressing delays by either party, retesting after failure, and handling failures to meet contract requirements after retesting.

Author: Victoria Tyson

Tags: completion, contractor, Delay, Employer, Test on Completion

Cofely v Knowles – From Appointment to Disappointment

There have been two High Court cases within the last […]

Author: Victoria Tyson

Tags: Court Decision, Nominating Tribunal Members, Nomination Process, Tribunal, Tribunal Members

BoQ Rates Neither ‘Immutable nor Sacrosanct’

The Hong Kong Court of Appeal now supports engineers requesting evidence of original tender build-up and disallowing loaded rates if substantial quantity differences justify it. This article explores that new guidance, which finds contract rates to be neither immutable nor sacrosanct.

Author: Victoria Tyson

Tags: Book of Quantities, BoQ, BoQ Rates, Contract Rates, Court Decision, Price-Loading

1999 Suite: Commentary on Clause 04 – The Contractor

Clause 4 of the FIDIC Red Book 1999 consolidates various Contractor obligations, covering 24 topics. It includes general duties and references other significant obligations scattered throughout the Contract, such as communications, assignment, document care, compliance with laws, and time for completion.

Author: Joanne Clarke

2017 Suite: Commentary on Clause 05 – Design

Clause 5 changes include specifying designer qualifications, moving part of Sub-Clause 5.1 to 1.9, changing “approval” to “No-objection” in Sub-Clause 5.2, and introducing a new procedure for addressing design errors in Sub-Clause 5.8.

Author: International Construction Team

2017 Suite: Commentary on Clause 04 – The Contractor

Clause 4 changes include defining ‘fitness for purpose’ in Employer’s Requirements, adjusting the Performance Security, handling communications by the Contractor’s Representative, setting subcontracting limits, enhancing health and safety obligations, redefining unforeseeable conditions, and increasing Contractor risk for access routes.

Author: International Construction Team

Are ‘binding’ DAB decisions enforceable?

Opinions on enforcing ‘binding’ DAB decisions vary. Some arbitrators support enforcement, while others, including the Singapore Court of Appeal, oppose it. This article considers case law addressing both sides of the argument and the issues that they raise.

Author: Joanne Clarke

Tags: DAB

FIDIC’S procedures for the appointment of a DAB need improvement

If the parties to a FIDIC contract cannot agree on […]

Author: Victoria Tyson

Tags: Adjudication Board, Appointment, DAAB, DAB, DAB Member, Dispute, dispute adjudication board, Dispute Resolution

10/13/2024

‘Taking-Over’ in the FIDIC Red Book 1999: Common Problems

A Taking-Over Certificate in FIDIC contracts marks the handover date of Works to the Employer, who cannot use them until issued. Disputes arise in tough economies, with Employers delaying responsibility and Contractors eager to finish and reduce costs.

Author: Victoria Tyson

06/04/2024

FIDIC Dispute Board Decisions: Late for a Very Important Date?

A FIDIC dispute board has just 84 days to give […]

Author: James Reader

FIDIC Green Book 2021 – Short and Simple?

As one of the drafters of the Green Book 1999, […]

Author: Edward Corbett

1999 Suite: Commentary on Clause 10 – Employer’s Taking Over

Clause 10 covers the Taking-Over of Works, Sections, or parts. It includes conditions for Taking-Over, deemed Taking-Over due to Employer’s use or interference, and breach of contract if the Engineer fails to issue the Taking-Over Certificate.

Author: Victoria Tyson

04/25/2024

1999 Suite: Commentary on Clause 20 – Claims, Disputes, and Arbitration

Clause 20 covers claims, disputes, and arbitration. It includes procedures for Contractor claims, appointing a Dispute Adjudication Board (DAB), handling disputes, amicable settlement, arbitration under ICC rules, and actions when a DAB decision is not complied with or absent.

Author: Victoria Tyson

04/24/2024

As simple as it seems? – an analysis of the prolongation costs clause in the FIDIC Green Book 2021

This article reflects on the introduction of an automatic contractual mechanism for calculating prolongation costs into the Green Book 2021 and will consider whether it will remove the expense of experts and lawyers from the process of claiming prolongation costs.

Author: James Reader

11/14/2023

Risks in the Construction of Hydropower Projects: Unforeseen Ground Conditions under FIDIC

Hydropower projects rely heavily on ground conditions, which are often unpredictable despite pre-tender investigations. This article explores how FIDIC contracts, especially the Emerald Book 2019, address risk allocation and mitigation in underground construction projects.

Author: Victoria Tyson

11/13/2023

Panther Pounces on Late Notice: Dubai court disagrees with Obrascon on time-bar under Sub-Clause 20.1 of FIDIC 1999

Contractors who fail to issue FIDIC 1999 Clause 20.1 notices on time risk losing claims. A DIFC Court of Appeal ruling reinterprets the 28-day notice period, challenging the Obrascon case and tightening requirements for timely contractor notifications under FIDIC contracts.

Author: Victoria Tyson

07/05/2023

The Role of the FIDIC Observer in ICC Arbitrations on FIDIC contracts

The ICC informed a recent FIDIC Conference that draft awards […]

Author: Edward Corbett

Be Nice to the Kid in the Corner: Brussels Cour de Cassation provides Charter for Overworked and/or lazy arbitrators

This article considers the court’s decision and implications in a case where an ICC Arbitral Tribunal Chair admitted that his Administrative Secretary drafted significant parts of the award, which was appealed as an unlawful delegation of authority.

Author: Victoria Tyson

07/04/2023

Soaring global construction costs under FIDIC: whose risk?

This article first appeared in IBA Construction Law International, Vol […]

Author: Joanne Clarke, Victoria Tyson

04/19/2023